Bombay High Court
Shankar S/O Natthulal Solanki vs State Of Maharashtra Thr. Pso Ps ... on 22 February, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION (REVN) NO.123 OF 2020
Shankar s/o Natthulal Solanki,
Aged about 42 years, Occ: Business,
R/o Plot No.122, Ramsumerbabanagar,
Kawarpeth, Nagpur
...APPLICANT
...V E R S U S...
1) State of Maharashtra,
Through P.S.O., Lakadganj, Nagpur.
2) Fakirchand s/o Shivaji Khandait,
Aged about 38 years, Occ: service,
3) Shivaji s/o Kawduji Khandait,
Aged about 66 years, Occ: retired,
4) Lilabai w/o Shivaji Khandait,
Aged about 60 years, Occ: household,
All respondent Nos.2 to 4 R/o Plot No.138,
Kinkhede Layout, Jamdarwadi, Kalamna,
Nagpur.
...NON-APPLICANTS
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Shri C.F. Bhagwani, Advocate for applicant.
Shri K.L. Dharmadhikari, A.P.P. for non-applicant no.1.
Shri K.M. Kshirsagar, Advocate for non-applicant nos.2 to 4.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 22nd FEBRUARY, 2021.
ORAL JUDGMENT
Rule. Rule is made returnable forth. Heard finally by
consent of the parties.
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(2) Heard Shri Bhagwani, learned counsel for the
applicant, Shri Dharmadhikari, learned A.P.P. for the non-
applicant no.1 and Shri Kshirsagar, learned counsel for the non-
applicant nos.2 to 4.
(3) The learned 2nd Additional Chief Judicial Magistrate,
Nagpur vide judgment dated 15.04.2017 in Regular Criminal Case
No.815 of 2009 acquitted the non-applicant no.2 to 4 for the
offence punishable under Sections 416, 468 and 471 of the Indian
Penal Code (I.P.C). But directed that after the appeal period is
ceased one TV of Sansui company, DVD player of Videocon
company, one iron cupboard, gold mangalsutra of 5 to 6 grams,
wrist watch of Sonata company, cash amount of Rs.17,000/- and
Rs.65,000/- be handed over the present applicant. The said part
directing to hand over muddemal property to the applicant was
challenged by the non-applicant no.2 to 4 by filing Criminal
Appeal No.261 of 2017. The learned Extra Joint Additional
Sessions Judge, Nagpur vide judgment dated 09.08.2018 allowed
the criminal appeal filed by the non-applicant no.2 to 4 and
directed that the non-applicant no.2 to 4 are entitled to receive
the muddemal property. The said judgment is challenged before
this Court.
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(4) According to Shri Bhagwani, learned counsel for the
applicant, applicant is the son of first informant and who is no
more, on his complaint the First Information Report (F.I.R.) was
lodged and criminal law was set into motion therefore it is only
the applicant who is entitled to receive the muddemal property.
(5) Firstly, it would be important to note that though the
non-applicant nos.2 to 4 were acquitted of the offence punishable
under Sections 416, 468 and 471 of the I.P.C. the prosecution did
not challenge the said acquittal. Though prosecution did not
challenge the acquittal, it was well open for the present applicant
being son of first informant and aggrieved party to challenge the
judgment of acquittal before the Appellate Court. However, for
the reasons best known to the applicant, he chose not to prefer the
appeal before the Appellate Court challenging the acquittal of
judgment though he was entitled to do so. In that view of the
matter, judgment of the acquittal passed by the learned 2 nd
Additional Chief Judicial Magistrate, Nagpur acquitting the non-
applicant no.2 to 4 of the offence punishable under Section 416,
468 and 471 of the I.P.C. has attained its finality.
(6) The question before this Court is whether the Appellate
Court in appeal filed by the non-applicant no.2 to 4 under
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Section 454 of the Cr.P.C. was right in upsetting the order of the
learned 2nd Additional Chief Judicial Magistrate and directing to
hand over the muddemal property present applicant.
(7) All the non-applicant nos.2 to 4 were not the accused
in the criminal prosecution that was lunched by the present
applicant. The non-applicant no.2 was prosecuted in Regular
Criminal Case No.815 of 2009 it was a State prosecution based on
the F.I.R. lodged by the present applicant. According to the
prosecution case, the F.R.I. was that the non-applicant no.2 has
dishonestly withdrawn amount of Rs.1,60,000/- on 21.08.2006
and Rs.1,00,000/- on 22.08.2006 from the Saving Account
No.7542 maintained in the Bank of Maharashtra by using forged
signatures of the present applicant/first informant. It is stated
before this Court that during the course of the investigation on
memorandum of statement TV, DVD player, Cupboard, Watch,
Mangalsutra with cash amount of Rs.17,000/- were seized from
the non-applicant no.2 and Rs.65,000/- was seized from non-
applicant no.3, father of the non-applicant no.2. From the
impugned judgment it could be observed and which is not at all
disputed before this Court that specimen signature and
handwriting of the non-applicant no.2 were taken and were sent
for the handwriting expert examination.
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(8) From the paragraph 5 of the impugned judgment as
stated it is not disputed by the counsel for the applicant before this
Court that in criminal trial in all 14 witnesses were examined
including the bank officials. As per evidence of the bank officials,
the first informant i.e. present applicant himself has submitted
withdrawal slip in the Bank of Maharashtra and withdrawn the
total amount of Rs.2,60,000/- from his bank account and also
handwriting expert did not give any report indicating that the
non-applicant no.2 has forged the signature of the applicant. Not
only that it appears from the impugned judgment that the bank
official has admitted the signature of the applicant was tallied and
thereafter only the payment was made.
(9) Thus, the order of the acquittal was on merit, inasmuch
as the prosecution has utterly failed to prove that the non-
applicant no.2 has forged the signature of the first informant as
alleged and has withdrawn the amount. Though it was open for
the applicant to challenge the verdict, if he was really aggrieved by
the finding recorded by the learned 2 nd Additional Chief Judicial
Magistrate, Nagpur, for the reasons as observed in the preceding
paragraphs of this judgment that the applicant chose to remain
silent and did not take any steps. In that view of the matter, the
finding recorded by the learned 2nd Additional Chief Judicial
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Magistrate that the signatures were not forged has reached to its
finality. Further, all the muddemal properties were admittedly
seized from the custody of the non-applicant nos.2 and 3 and not
from the applicant. In that view of the matter, in my view, the
learned Extra Joint Additional Sessions Judge, Nagpur was right
in holding that the learned 2nd Additional Chief Judicial Magistrate
has committed error in granting the possession of the muddemal
to the applicant. I affirm the finding given by the learned Extra
Joint Additional Sessions Judge, Nagpur. Consequently, I pass the
following order.
ORDER
i) The criminal revision application is dismissed.
The judgment and order passed by the learned Extra Joint
Additional Sessions Judge, Nagpur dated 09.08.2020 in
Criminal Appeal No.261 of 2017 is hereby confirmed.
ii) Applicant is directed to deposit the muddemal,
which he has received from the Police Station, Lakadganj,
Nagpur to the Court of learned Judicial Magistrate First Class
having jurisdiction of Police Station, Lakadganj, Nagpur.
Thereafter, non-applicant nos.2 to 4 shall be allowed to
repossess the said muddemal property.
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iii) At this stage it was informed to this Court by
learned counsel for the non-applicant nos. 2 to 4 and also by
learned A.P.P. that in view of the order pass by the learned
2nd Additional Chief Judicial Magistrate, Nagpur the
applicant has taken entire muddemal from the police station.
The learned A.P.P. submitted that in his reply that said
muddemal was given on supratnama. Since this Court is
dismissing the revision non-applicant nos.2 to 4 will be
entitled to repossess the muddemal.
Rule is discharged.
JUDGE
Wagh
